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Trial By Media: How Does it Affect the Right to a Fair Trial?

In Medieval England, people were subjected to all kinds of trials to prove their innocence – one of these involved being forced to pick a stone up from the bottom of an elbow deep pot of boiling water.

Guilt or innocence would be proved depending on whether, after three days, their skin remained burnt and blistered (in which case they were guilty) or healed (they were innocent).

And finding out if a woman was a witch was easy: all you had to do was to throw her into a river. If she floated, she was a witch, and if she sank, she was innocent.

In 2014 we like to think we have developed methods a little more advanced than these in the criminal justice system. But trial by media is perhaps just as detrimental to the case of an accused person. It stands contrary to our system of evidence laws (dictating what information can be taken into account during a court case) and the presumption of innocence.

But if the case unfolds in the media, by the time a case gets to court, the supposedly impartial jury (or even the judge) may have already heard information and allegations (not admissible by court standards) that have caused them to seriously prejudice the parties.

Trials by media, by now a fairly well known concept, goes straight to the issue of protecting the right to a fair trial. Media coverage (not to mention social media) now allows us to hear, judge and condemn those accused, all from the comfort of our own home.

There are often problems when the person, or persons involved are famous, as they are more likely to make the paper (or twitter feed). Politicians, former magistrate Marcus Einfield and even infamous teen partier Corey Worthington have all been subjected to trial by media.

The problem is a collision between the right to a fair trial on one hand and freedom of speech and public interest (including ‘open justice’) on the other.

While the public has a right to know if politicians are involved in less than ethical behaviour, there comes a point where excessive media coverage could impact on a fair trial. Finding this balance often proves elusive.

And not all cases deal with people who were famous, or even heard of, before their trial.

In 2012, Jill Meagher, a 29 year old ABC employee was murdered, and social media had been saturated with coverage of her death. The CCTV footage showing her on Sydney Road, Melbourne just before her disappearance was played 75,000 times on social media within one two-hour time frame.

One facebook hate-group emerged, calling for suspect (and later convicted murderer) Adrian Ernest Bayley to be executed. It attracted over 18,000 likes before the trial had even started. The Victorian Police warned posters that “posting anything on social media… could jeopardize or endanger the presumption of innocence, as this has the very high potential to interfere with the administration of justice.”

In fact, intrusion by social media may have consequences on legal proceedings, even possibly resulting in an incapacity to prosecute.

Generally, people who interfere with the course of justice may be charged with contempt of court. Journalists who report on a case before the court has finished dealing with it are limited in the facts that they can report about.

After someone is charged in relation to an offence, media (and this includes anyone on social media) need to stop talking about a person who may have previously been featured in every newspaper or twitter feeds for weeks.

If not, it may be possible for defence lawyers to argue that there is no possibility for a fair trial because of all the information that is already published about their client.

In order to make sure that juries are impartial, they are not supposed to have exposure to information that may prejudice. But rules that governed this kind of jury impartiality are now obsolete, sometimes even comical.

When Corey Worthington became a media sensation overnight for hosting a wild, out of control party when his parents went away, the media had to stop mentioning his name as soon as charges were laid.

Of course, when they mentioned an Aussie teen who was due to appear in court on charges related to an out-of-control party, everyone knew exactly who he was talking about.

Traditional media are more on top of what they can and cannot legally report but most social media posters don’t realise that they are actually publishers.

Of course individually prosecuting everyone who wrote comments that may interfere with the course of justice is not practical, and enforcing contempt online is nearly impossible.